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Home My WebLink About2015-1990.Policy.17-02-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-1990, 2015-1991 Union#G-41-15-COR, G-40-15-COR IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Policy) Union - and - The Crown in Right of Ontario (Metrolinx - GO Transit) Employer BEFORE Susan L. Stewart Chair FOR THE UNION Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Richard Charney Norton Rose Fulbright Counsel HEARING CONFERENCE CALL SUBMISSIONS January 26, 2017 February 6, 2017 February 10, February 14, 2017 - 2 - Decision [1] There are two policy grievances before me, both filed on July 29, 2015. The grievances both assert a claim for bargaining rights in relation to the entities PRESTO, which deals with payment systems, and UP Express, which provides transportation between Union Station and Pearson Airport. Issues of production were addressed at the Board on January 27, 2017, however, a matter that requires a ruling from the Board was subsequently identified. [2] The Union seeks production of documents, described in a February 1, 2017, email message from Mr. Ardron as: Any work orders or bill backs (or similar documents, soft or hard) which would demonstrate when members of the bargaining unit performed work for “another line of business” such as PRESTO or Union Pearson Express. [3] In a letter dated February 2, 2017, Mr. Charney expressed the Employer’s opposition to production as follows: The grievances relate to PRESTO and UP Express. Yet the Union is now seeking documents related to all instances of bargaining unit members performing work in another line of business. This request is unparticularized and overbroad. Indeed, it is nothing more that a fishing expedition. [4] In his submissions of February 10, 2017, at paragraph 12, Mr. Ardron states that: Local 1587 is advancing a number of legal and factual theories in this matter, including: (a) The “divisions” or “lines of business” cited by Metrolinx as restricting Local 1587’s bargaining rights are paper constructs which have no bearing in law or reality; (b) Bargaining unit members historically and on an ongoing - 3 - basis perform work for other “divisions” or “lines of business” i.e. PRESTO and UP Express; (c) Metrolinx, Go Transit, PRESTO, and UP Express are a single legal entity which are functionally integrated; (d) The Employer is seeking to use “divisions” or “lines of business” to evade bargaining rights held by Local 1587. [5] Mr. Ardron notes that in its provisional particulars, the Union has identified work done by members of the bargaining unit and their classifications in connection with UP Express, in paragraphs 39-45, and work and classifications associated with PRESTO, in paragraphs 54-60. While continuing to assert a broader claim, Mr. Ardron advanced an alternative claim for documents that would demonstrate when members of the bargaining unit performed that particular work at UP Express and PRESTO. However, the Union asserts that its particulars have set out crossover work and that production is appropriately sought in order to provide further examples and provide the associated documentation for the examples that have been particularized. [6] In his submissions of February 14, 2017, Mr. Charney argued that the documents sought are unrelated to the pleadings, that the request constitutes a fishing expedition and that the Union’s request does not reflect the principles of proportionality. With respect to the latter point, he notes that the Union’s request could result in hundreds of documents needing to be retrieved and produced by Metrolinx. Mr. Charney also notes, at paragraph 27 of his submissions, that: … the grievances in this case relate to PRESTO and UP Express and the Union’s assertion of bargaining rights - 4 - over these new lines of business. Yet the Union is now seeking documents relating to all instances of bargaining unit members performing work in another line of business [7] The parties were in dispute as to the appropriate test to be employed in relation to a request for an order for production. The Union argued that the appropriate test is that set out in Toronto District School Board and CUPE, Local 4400, (2002), 109 L.A.C. (4th) 20 (Shime), a test that it argued has been endorsed by this Board. The Employer argued that the appropriate test is that set out in Toronto Transit Commission and ATU, Local 113 (Candela) 2016 CarswellOnt 19288 (Stout), described therein at paragraph 26 as “a cautious and focused approach to document production”, in contrast to what was characterized as the “liberal” approach taken by Arbitrator Shime. The Employer also took issue with the proposition that the “liberal” approach was endorsed by this Board. [8] The resolution of this matter does not require a determination as to which of these tests is appropriate. The Union’s production request, to the extent that it is not restricted to the UP Express and PRESTO lines of business in work that has been particularized, does not meet the “liberal” test. The grievances relate to those two entities and Mr. Charney’s characterization of a request that goes beyond those entities as overbroad has merit. However, accepting for the purposes of argument, without deciding whether the Employer’s position that the “cautious and focused” test is correct, it is my view that insofar as the Union seeks documents with respect - 5 - to bargaining unit work performed at UP Express and PRESTO that is particularized, i.e. its alternative request, the production request meets that standard. [9] The Union’s grievances relate specifically to a claim for representation rights in relation to PRESTO and UP Express. There is a nexus between the Union’s theory of its case and the documents sought with respect to work that it has particularized as performed by its members in PRESTO and UP Express. Of course, whether there is merit to the Union’s position is yet to be determined. However, the Union is entitled to advance its case and in furtherance thereof, is entitled to documents that are arguably relevant to its theory of its case. Accordingly, insofar as the production request relates directly to matters that are particularized in relation to the two entities in issue, I am unable to accept Mr. Charney’s submission that such a request is inconsistent with principles of proportionality and that it constitutes a fishing expedition. It is, in my view, a “proportionate and specific inquiry” as contemplated in paragraph 43 of Toronto Transit Commission, supra. On any analysis however, in the context here, asking the Employer to search its records for “further examples” is a fishing expedition. [10] However, as noted in Mr. Charney’s letter of November 18, 2016, Metrolinx acknowledges that some work at PRESTO and UP Express has at times been performed by bargaining unit members. This aspect of the matter leaves me to question the need for production. If the Employer can agree that the work in PRESTO and UP Express has been performed as specified by the Union, it is not clear to me, at this juncture, that a record search would be necessary. I leave that - 6 - matter for consideration by the parties, along with the other issues that they have identified in relation to production. [11] The preceding paragraph refers to an area where it appears there is potential for agreement on facts. It would seem that there are many other such areas. The parties have agreed upon a process to expedite the resolution of this matter and the same constructive approach to narrowing any factual disputes would be similarly be beneficial. Dated at Toronto, Ontario this 21st day of February 2017. Susan L. Stewart, Chair